Grant v 110-112 Third Ave. Realty Corp.
Annotate this CaseDecided on November 24, 2009
Civil Court of the City of New York, New York County
Ghani Grant, Plaintiff,
against
110-112 Third Avenue Realty Corp. AND TISHMAN CONSTRUCTION CORP. OF NEW YORK, Defendants.
300660TSN07
For plaintiff:
Thomas P. Markovits, Esq.
Mirman, Markovits & Landau, PC
291 Broadway 6th floor
New York, NY 10007
212-227-4000
For defendants:
Robert S. Bernstein, Esq.
McCarter & English, LLP
245 Park Avenue
New York, NY 10167
212-609-6800
Barbara Jaffe, J.
Plaintiff moves pursuant to CPLR 3212 for an order summarily granting
him judgment on his causes of action based on alleged violations of Labor Law §§
240(1) and 241(6). Defendants oppose the motion on the ground that the existence of factual
issues precludes a summary disposition in plaintiff's favor.
I. LABOR LAW § 240(1)
Pursuant to Labor Law § 240(1), all contractors, owners, and their agents, in the process of erecting, demolishing . . . a building or structure, must furnish or erect for the performance of such labor, ". . . stays . . . braces . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." As the purpose of the statute is to "protect workers by placing ultimate responsibility for safety practices on owners and [*2]contractors instead of on workers themselves," the statute is liberally construed. (Panek v County of Albany, 99 NY2d 452 [2003]; Hill v Stahl, 49 AD3d 438 [1st Dept 2008]).
To establish liability pursuant to Labor Law § 240(1) based on a falling object, a plaintiff must show that when the object fell, it required securing for the purpose of the undertaking, and that it fell as a result of the absence or inadequacy of a safety device mentioned in the statute. (Quattrocchi v F.J. Sciame Constr. Corp. Inc., 11 NY3d 757, 758-759 [2008]; Outar v City of New York, 5 NY3d 731 [2005; Marin v AP-Amsterdam 1661 Park LLC, 60 AD3d 824 [2d Dept 2009]). Moreover, the risk of injury from the object falling onto the worker must have been foreseeable. (Buckley v Columbia Grammar and Preparatory, 44 AD3d 263 [1st Dept 2007]; Shipkoski v Watch Case Factory Assocs., 292 AD2d 587 [2d Dept 2002]).
Plaintiff argues that his unrebutted testimony demonstrates that while he was engaged in a protected activity, he was exposed to an elevation-related hazard and injured due to defendants' failure to provide a required safety device, which failure was a proximate cause of the accident. (Affirmation of Thomas P. Markovits, Esq., dated June 2, 2009 [Markovits Aff.]). Specifically, he alleges that while he was digging a hole underneath the foundation of a building, a rock or boulder that was at least four feet above his head fell down on him and injured him, and that the rock fell as a result of defendants' failure to secure or shore it. (Id.). Plaintiff also asserts that defendants had shored up other rocks in other holes at the work site, and that after he asked his supervisor to place shoring in the hole in which he was digging, his supervisor told him it was fine and directed him to keep digging. (Id.).
Defendants argue that as plaintiff's medical records establish that he is at least five feet and six inches tall, based on his own description of the accident and the height of the hole, the rock could not have fallen four feet onto him. Rather, they maintain that the rock could only have fallen a distance of six inches, an elevation insufficient to invoke the protection of Labor Law § 240(1). (Affirmation of Robert S. Bernstein, Esq., dated Sept. 24, 2009 [Bernstein Aff.]; Defendants' Memorandum of Law, dated Sept. 24, 2009 [Memo.]). Defendants also contend that plaintiff's own actions constituted the sole proximate cause of the accident as the rock was part of the building's foundation which plaintiff was in the process of undermining when it fell, and plaintiff acknowledged the need for shoring and continued to work notwithstanding the absence of shoring. (Memo.).
In reply, plaintiff denies that the rock fell less than four feet, and observes that the defense of contributory negligence is inapplicable to a Labor Law § 240(1) claim and that there is no evidence that he did anything to cause the rock to fall. (Reply Affirmation, dated Oct. 7, 2009 [Reply Aff.]).
As plaintiff's evidence establishes that he was injured as a result of an elevation-related hazard by a falling rock which had required securing precisely for the purpose of his undertaking, namely, digging out from under it, and that the injury was foreseeable, he has demonstrated, prima facie, that defendants violated Labor Law § 240(1). (See Outar, 5 NY3d 731 [object that fell on plaintiff required securing for purpose of plaintiff's undertaking]; Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004 [2d Dept 2009] [as there was significant risk that unsecured sheet metal would fall and cause injuries to workers, defendant was obligated to use safety devices to secure metal]; Tylutki v Tishman Technologies, 7 AD3d 696 [2d Dept 2004], lv denied 3 NY3d [*3]702 [plaintiff was exposed to gravity-related hazard when, while engaged in demolition of building, he was struck by falling pipe and no safety device was used in connection with work]; Orner v Port Auth. of New York and New Jersey, 293 AD2d 517 [2d Dept 2002] [plaintiff injured while working on ground floor by unsecured roofing material that had fallen from roof]).
However, defendants offered evidence disputing plaintiff's version of the accident, and have thus raised a factual issue precluding a summary disposition, although their argument that the rock fell only six inches is not dispositive. (See Brown v VJB Constr. Corp., 50 AD3d 373 [1st Dept 2008] [while some elevation differential is required, extent of differential not necessarily determinative]; Amo v Little Rapids Corp., 268 AD2d 712 [3d Dept 2000] [factual issue of extent of elevation differential should have been submitted to jury]).
I address, infra, defendants' allegation that plaintiff was the sole proximate cause of
the accident. A defense based on an alleged assumption of risk or contributory negligence is,
however, inapplicable to a Labor Law § 240(1) claim. (Oaks v Pioneer Dev. Co.,
LLC, 294 AD2d 897 [4th Dept 2002] [assumption of risk]; Hill, 49 AD3d at 442
[contributory negligence]).
II. LABOR LAW § 241(6)
Pursuant to Labor Law § 241(6), "all areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein. . ."
It is undisputed that plaintiff established defendants' violation of at least one of the Industrial Code provisions set forth in counsel's affirmation, thus demonstrating, prima facie, defendants' violation of Labor Law § 241(6). (Markovits Aff.). Defendants deny liability on the sole ground that plaintiff contributed to his own injury. (Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment, dated Sept. 24, 2009).
Absent any evidence that plaintiff's conduct loosened the rock above him or caused it to fall on him, defendants have failed to raise a triable issue of fact as to whether plaintiff solely caused the accident. Moreover, plaintiff's unrebutted testimony reflects that he continued digging despite the absence of shoring because his supervisor directed him to do so. Consequently, as a matter of law, plaintiff's conduct was not the sole proximate cause of his injury. (See Lee v Astoria Generating Co., L.P., 55 AD3d 124 [1st Dept 2008] [no indication that plaintiff's actions were sole proximate cause of injury where he was directed to access well in unsafe manner and when he complained, was told to comply or go home]; Caldas v City of New York, 284 AD2d 192 [1st Dept 2001] [plaintiff not sole proximate cause of injury as evidence showed he was directed to climb on unshored dirt ramp notwithstanding his expression of concern over its safety]; Pirchardo v Aurora Contractors, Inc., 29 AD3d 879 [2d Dept 2006] [plaintiff did not decline use of safety device or unilaterally decide to disassemble ladder which led to his injury, but rather followed supervisor's directions and example]).
Finally, a defense based on an alleged assumption of risk is also inapplicable to a Labor Law
§ 241(6) claim. (Lukas v KD Dev. Constr. Corp., 300 AD2d 634 [2d Dept 2002]
[workers do not assume risk of injury caused by statutory violation]; Lorefice v Reckson
Operating Partnership, LP, 269 AD2d 572 [2d Dept 2000] [defendant's contention that
plaintiff made [*4]decision to work at live electrical panel with
full knowledge of risk of electrical shock did not bar plaintiff's claim]).
III. CONCLUSION
For these reasons,
plaintiff's motion for an order granting him summary judgment is denied as to the first cause of
action for a violation of Labor Law § 240(1), and granted as to the second cause of action
for a violation of Labor Law § 241(6). His damages on the Labor Law
§ 241(6) claim shall be assessed at the time of trial.
This constitutes the decision and order of the court.
_______________________________
Barbara Jaffe, JCC
DATED:November 24, 2009
New York, New York
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